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Open PDF File, 694.6 KB, for Onset Bay II Corporation COMMONWEALTH OF MASSACHUSETTS EXECUTIVE OFFICE OF ENERGY & ENVIRONMENTAL AFFAIRS DEPARTMENT OF ENVIRONMENTAL PROTECTION ONE WINTER STREET, BOSTON, MA 02108 617-292-5500 THE OFFICE OF APPEALS AND DISPUTE RESOLUTION August 28, 2020 ________________________ In the Matter of OADR Docket No. 2012-034 Onset Bay II Corporation DEP Waterways Application No. W07-193 ________________________ RECOMMENDED FINAL DECISION INTRODUCTION In this appeal, Connor E. Comrie, Louise Flanders, Jim Kallstrom, Dave Moezelaar, Donna Tramontozzi, and Frank Tramontozzi (collectively “the Intervenors”)1 challenge a draft c. 91 License that the Massachusetts Department of Environmental Protection (“MassDEP” or “Department”) issued to Onset Bay II Corporation, predecessor in interest to BOBM, Inc. (“the Applicant”) in June 2015 (“the Draft June 2015 c. 91 License”) pursuant to G.L. c. 91 (“Chapter 91” or “c. 91”) and the Department’s c. 91 Regulations at 310 CMR 9.00. The Draft June 2015 c. 91 License authorized the Applicant’s proposed Revised Project to expand its existing marina facility on Onset Bay in Wareham, Massachusetts (“Wareham”) after the Department had rejected the Applicant’s Original Project to expand the marina in June 2012. The Intervenors 1 The Intervenors are referred to as such because they were not original parties to the appeal when it was filed in June 2012 and became parties thereafter. See below, at pp. 13, 21. This information is available in alternate format. Contact Michelle Waters-Ekanem, Director of Diversity/Civil Rights at 617-292-5751. TTY# MassRelay Service 1-800-439-2370 MassDEP Website: www.mass.gov/dep Printed on Recycled Paper request the Draft June 2015 c. 91 License be vacated because it purportedly violates G.L. c. 91, the Department’s c. 91 Regulations at 310 CMR 9.00, and other environmental regulatory requirements for a multitude of reasons discussed below, at pp. 2-4, 43-97. The Applicant and the Department dispute the Intervenors’ claims, contending that the Department properly issued the Draft June 2015 c. 91 License approving the proposed Revised Project, and as such, it should be affirmed. See below, at pp. 43-97. The Applicant also challenges the Intervenors’ standing to challenge the Draft June 2015 Draft c. 91 License. Id., at pp. 33-43. I conducted an evidentiary Adjudicatory Hearing (“Hearing”) to resolve the Intervenors’ claims against the Draft June 2015 c. 91 License. The Hearing was recorded by a stenographer/certified court reporter at the Intervenors’ expense and the transcript of the Hearing that the stenographer/certified court reporter prepared of the Hearing was filed as part of Administrative Record in the case. The Issues for Resolution (“the Issues”) at the Hearing as agreed to by the Parties at the Pre-Hearing Conference that I conducted with the Parties well in advance of the Hearing,2 were the following: 1. Whether each of the Intervenors has standing as an “aggrieved person” pursuant to 310 CMR 9.02 and 9.17(1)(b) to challenge the Draft June 2015 c. 91 License that the Department issued to the Applicant? 2. If at least one Intervenor has standing as an “aggrieved person” pursuant to 310 CMR 9.02 and 9.17(1)(b) to challenge the Draft June 2015 c. 91 License: a. Whether, under 310 CMR 9.14(2) and (3), prior to issuance of the Draft June 2015 Draft License the Department was required to require the Applicant to file a new c. 91 Application seeking approval of the proposed 2 As discussed below, at pp. 13-30, the proceedings in this case have been stayed for extended periods of time on three occasions to: (1) foster settlement discussions in the case; (2) cure the Applicant’s non-compliance with the notice requirements of 310 CMR 9.13(1)(a)1-7 regarding the proposed Revised Project; and (3) address the Applicant’s and the Department’s concerns regarding former Department staff member John Simpson testifying at the Hearing as the Intervenors’ expert witness in opposition to the Draft June 2015 c. 91 License. In the Matter of Onset Bay II Corporation OADR Docket No. 2012-034 Recommended Final Decision Page 2 of 98 Revised Project, or hold a new public hearing on the Project, or issue a detailed new Written Determination on the Project, after having previously held a public hearing and issued a Written Determination denial of a c. 91 license for the Original Project? b. Whether the proposed Revised Project significantly interferes with Intervenors’ littoral rights in violation of 310 CMR 9.36? c. Whether the plan for the proposed Revised Project fails to accurately set forth the extended property and littoral lines consistent with the definitions of Project Shoreline and Project Site set forth in 310 CMR 9.02 and 310 CMR 9.11(3)(c)(1)? d. Whether 310 CMR 9.14(3) required the Department in this case to determine that the proposed Revised Project “serves a proper public purpose which provides greater benefits than detriments to the public’s rights in tidelands”, and if so, whether the Department has made that finding? e. Whether, pursuant to 310 CMR 9.35(1), the interference with certain water-related public rights resulting from the proposed Revised Project have been mitigated “to the greatest extent deemed reasonable by the Department” and whether “the overall public trust in waterways is best served”? f. Whether the proposed Revised Project significantly interferes with the line of sight for navigation pursuant to 310 CMR 9.35(2)(a)(1)(c)? g. Whether the proposed Revised Project alters an established course of vessels pursuant to 310 CMR 9.35(2)(a)(1)(d)? h. Whether the proposed Revised Project interferes with access to adjoining areas by extending substantially beyond the projection of existing structures pursuant to 310 CMR 9.35(2)(a)(1)(e)? i. Whether the proposed Revised Project prevents the public from passing freely on the waterway pursuant to 310 CMR 9.35(2)(a)(1)(j)? j. Whether the proposed Revised Project is inconsistent with the Town of Wareham’s Harbor Management Plan pursuant to 310 CMR 9.34? k. Whether a prior settlement between the Applicant and the Intervenor Frank Tramontozzi (“Mr. Tramontozzi”) bars the Applicant from having In the Matter of Onset Bay II Corporation OADR Docket No. 2012-034 Recommended Final Decision Page 3 of 98 filed the application for the proposed Revised Project? l. Whether the Applicant’s revised plan for the proposed Revised Project significantly interferes with the Intervenors’ rights to navigate by sail in violation of 310 CMR 9.36(1); 9.36(2) and 9.36(3)? m. Whether the proposed revised project violates the Massachusetts Ocean Sanctuary Act (“MOSA”), including (1) whether the Department failed to make a legal finding required by the MOSA Regulations at 302 CMR 5.08(4), and Department Regulations at 310 CMR 9.33(1)(f); and (2) whether the issuance of the Draft June 2015 c. 91 License violates the requirements of 310 CMR 9.33(1)(f), given the written comments and rulings by the Department of Conservation and Recreation (“DCR”) of non-compliance with MOSA in letters dated December 22, 2006 and May 24, 2007 regarding the Original Project? At the Hearing, all of the Parties were represented by legal counsel and presented witnesses in support of their respective positions in the case. The witnesses were cross- examined by opposing counsel on the sworn Pre-filed Testimony (“PFT”) that the witnesses had filed prior to the Hearing. The Intervenors, the Parties with the burden of proof on all of the Issues,3 presented testimonial, documentary, and photographic evidence from three witnesses at the Hearing: (1) Intervenor Louise Flanders (“Ms. Flanders”);4 (2) John Simpson (“Mr. Simpson”), a c. 91 expert with more than 30 years of work experience in the c. 91 field, including 13 years as a staff member of the Department’s c. 91 Program (1986 to 1999);5 and (3) Intervenor Mr. Tramontozzi.6 3 See below, at pp. 30-33. 4 Pre-filed Direct Testimony of Louise Flanders (“Ms. Flanders’ Direct PFT”); Rebuttal Testimony of Louise Flanders (“Ms. Flanders’ Rebuttal PFT”). 5 Pre-filed Direct Testimony of John Simpson (“Mr. Simpson’s Direct PFT”); Pre-filed Rebuttal Testimony of John Simpson (“Mr. Simpson’s Rebuttal PFT”). 6 Pre-filed Direct Testimony of Frank A. Tramontozzi, PE (“Mr. Tramontozzi’s Direct PFT”); Rebuttal Testimony of Frank A. Tramontozzi, PE (“Mr. Tramontozzi’s Rebuttal PFT”). In the Matter of Onset Bay II Corporation OADR Docket No. 2012-034 Recommended Final Decision Page 4 of 98 Intervenor Connor E. Comrie (“Mr. Comrie”) filed sworn PFT in support of the Intervenors’ claims in the appeal prior to the Hearing but failed to appear at the Hearing for cross- examination, and as a result, his PFT was stricken from the Administrative Record of the appeal in accordance with the Adjudicatory Proceeding Rules at 310 CMR 1.01(12)(f) and 310 CMR 1.01(13)(h).7 Intervenors Jim Kallstrom (“Mr. Kallstrom”), Dave Moezelaar (“Mr. Moezelaar”), and Donna Tramontozzi (“Ms. Tramontozzi”) did not file any sworn PFT in support of their claims in the appeal, and as a result, their claims were dismissed.8 In rebuttal to the Intervenors’ claims at the Hearing, the Applicant presented testimonial, documentary, and photographic evidence from four witnesses at the Hearing: (1) Christopher Foster (“Mr. Foster”), the Marina Manager at Brewer Plymouth Marine in Plymouth, Massachusetts, an entity affiliated with the Applicant;9 (2) Greg Glavin (“Mr. Glavin”), the Applicant’s General Manager;10 (3) Stanley Humphries (“Mr. Humphries”), Coastal Geologist with more than 39 years of experience in various environmental areas including c.
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